Citation Nr: 1802683 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-38 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a neurological disorder of the right lower extremity, to include as secondary to a service-connected right knee medial plica syndrome, post-operative, excision of plica. 2. Entitlement to service connection for a neurological disorder of the left lower extremity, to include as secondary to a service-connected left knee medical plica syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to January 1989. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In February 2015 and December 2016, the Board remanded this claim for additional development. It has since been returned for further appellate consideration. In the February 2015 Board decision, the Board remanded the issues of entitlement to service connection for a psychiatric disorder, sinusitis, and a skin disorder, in addition to a total disability rating based on individual unemployability and the service connection for neurological disorders of the bilateral lower extremities. In a July 2015 rating decision, the RO granted service connection for posttraumatic stress disorder, acne, and rhinitis. In an August 2017 rating decision, the Veteran was granted entitlement to a total disability based on unemployability (TDIU). These decisions are considered a full grant of benefits sought on appeal, and the appeal concerning those claims is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). LCM includes the July 2014 Board Hearing Transcript and VA treatment records. Otherwise, documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets further delay, remand is required to obtain an adequate VA examination and opinion that are in compliance with a prior Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The Board is obligated by law to ensure that the RO complies with its directives. Stegall, 11 Vet. App. at 271. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). In the December 2016 remand, the Board directed the examiner to identify all current neurological disorders of the lower extremities found on examination, to specifically indicate whether the Veteran has neuropathy, and if any previously diagnosed neurological disorder was not found on examination, to include neuropathy, to address the prior diagnosis of record. Finally, for each neurological disorder identified, the examiner was directed to provide an opinion as to whether it is at least as likely as not that each neurological disorder manifested during active duty service, is otherwise related to active duty service, or was caused or aggravated by the service-connected bilateral knee disabilities. A VA opinion was obtained in January 2017. The examiner stated that he reviewed the Veteran's file and it was clear that the Veteran had bilateral retropatellar pain syndrome. However, the examiner noted that this was not a neurological problem, but rather an orthopedic joint problem of the knee. Furthermore, the examiner stated that in the February 22, 2011, list of problems, the Veteran made a telephone call to primary care complaining of left ankle which was also another orthopedic problem. The examiner found no evidence of neuropathy and found that the Veteran's pain was related to knee and ankle joint problems. The Veteran was afforded a VA examination in March 2017. A diagnosis of peripheral neuropathy was provided. Symptoms attributable to peripheral nerve conditions included mild, intermittent pain of the bilateral lower extremities. The examiner noted mild incomplete paralysis of the bilateral sciatic nerves of the lower extremities. The examiner noted that the Veteran's symptoms were present in her toes. However, the examiner explained that if the Veteran had neuropathy from degenerative knee disease, it would be typically manifested as popliteal nerve entrapment, and her symptoms would be present at the knee and extend distally, but that the pattern or symptoms suggested her neuropathy was not due to a knee condition. The examiner opined that therefore, it was less likely than not that her neuropathy, which involved the hands and feet, was secondary to her service-connected knee condition. In May 2017, a VA addendum opinion was obtained. However, the VA examiner found that he could not provide the requested information on review as it would require a physical examination with history and without which would resort in mere speculation. The Veteran was afforded a VA examination in August 2017. The Veteran was not diagnosed with having a peripheral nerve condition or peripheral neuropathy. Sensory examination of the lower leg/ankle (L4/L5/S1), revealed normal response in the right lower leg/ankle and a decrease in the left lower leg/ankle. Additionally of the foot/toes (L5), the right foot/toes were found to be normal, and the left was decreased. The examiner remarked that he could not diagnose a neuropathy, and that the Veteran had significant back, knees, and ankle pathology in service but no evidence of neuropathy. Furthermore, the examiner remarked that if the Veteran did have neuropathy, he could not link it to military service. The Board notes that the prior opinions obtained are inadequate. The January 2017 opinion was provided without an examination and the examiner provided no supporting explanation. The March 2017 VA examination report did not contain an opinion regarding whether the service-connected bilateral knee disabilities aggravated the diagnosed neuropathy. The August 2017 VA examination report is inadequate as it did not address the prior diagnoses of record, to include the March 2017 examiner's diagnoses of sciatic nerve neuropathy. In light of the foregoing, the Board concludes that the Veteran should be afforded another VA examination. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) including VAMC Columbia, South Carolina, and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact the Veteran and afford her the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and her representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her neurological disorder of her lower extremities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a) Identify all current neurological disorders of the lower extremities. If any previously diagnosed neurological disorder, to include neuropathy or hyperesthesia, is not found on examination, address the prior diagnoses of record. The examiner must address the following: 1) the diagnosis of sciatic nerve neuropathy in the March 2017 VA examination; 2) VA treatment records indicating peripheral neuropathy and hyperesthesia; 3) the Veteran's use of gabapentin for nerve pain; 4) the Veteran's reports of loss of nerves, weakness, and numbness in her legs and feet; and 4) the August 2017 examination noting moderate intermittent pain and numbness of the bilateral lower extremities and a decreased sensory response in the left lower leg/ankle. b) If a diagnosis is found, provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed neurological disorder of the right and left lower extremity had onset in, or is otherwise related to, active service. c) If a diagnosis is found, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each diagnosed neurological disorder of the lower extremities is caused by the service-connected right and left knee disabilities. d) If a diagnosis is found, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each diagnosed neurological disorder of the lower extremities is aggravated by the service-connected right and left knee disabilities. 4. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).